THE JOHN CU'I'IRELL.
boat in transporting cargo a long distance, where the services of tIle crew were ordinary services, within the scope of their duty. (3) The allowance made to the Ariel of $1,000 is consirlered satisfactory; but the seven men taken aboard at Port Eads are entitled to their pro mta share of the one-half thereof belonging to the crew. They are before the court, and should be allowed the same as landsmen regularly shipped the Ariel.
I only deem it necessary to say further in this case that, from the contracts made by the master and agents of the Delambre on one side and the tow-boats and tow-boat lines and Capt. Adams on the other, as they appear in the evidence, it seems that the Delambre is fully protected; and the real contest in this case is not interesting to that ship or her owners, but is really a contest among rival salvors as to the proper of salvage compensation amicably agreed on, and therefore it is not necessary that this court should join the proctor of the ship in properly characterizing the greed and schemes and morals of many of the parties who have figured in the matter of salvage in this case.
THE JOHN CUTTRELL.
(District (Jourt, E. D. New York. December 12, 1881.)
MARITIME LIENS-TOWAGE SERVICE-SALE UNDER A STATE
By the maritime law of the United States, one who performs towage services for a domestic vessel, on navigable waters of the United States, acquires a mar· itime lien on the vessel, which he can enforce by an admiralty proceedmg in rem" and the lien cannot be destroyed by a subsequent sale of the vessel under a state law.
On the facts of this case, a defence based on the ground of laches mnst fail.
In Admiralty. H. G. Hull, for libellant. Tunis G. Bergen, for claimant. BENEDICT, D. J. This is a proceeding in ",em to enforce a lien for services performed in towing the lighter John Cuttrell. The nature and amount of the services are admitted. These services were necessary to enable the lighter to make voyages and earn freight. It was by means of them that she was enabled to navigate. It cannot, therefore, be doubted that the services in question, rendered as they were in the performance of a maritime contract, are maritime in character. The demand is, then, within the jurisdiction of the admiralty. It is equally clear that these services, by reason of their
character, gave rise to a maritime lien upon the lighter. 'rhe exist· ence of such a lien is not affected by the fact that the lighter was a domestic vessel. The supreme court of the United States adhere to the anomalous doctrine that when the vessel is domestic a materialman has no lien by the maritime law of the United States; but that doctrine has never been extended to such a case as this, where the claim is for services performed in navigating a vessel on navigable waters of the United States, in the harbor of New York, and in part between New York and Weehauken, in the state of New Jersey, and I am by no means inclined so to extend it. The right of the libellant to maintain this proceeding I therefore consider to be clear, and I proceed to consider the matters of defence. One defence is that the claim is stale and the lien lost by laches. The service rendered to this vessel, as disclosed by the libel, was in substance a continuous service, extending through the months of August, September, October, and November, 1879. In January, 1880, the vessel was taken possession of by the sheriff, by virtue of a writ from the state court, and retained in his custody until March 12, 1880, when she was I:lold to the present claimant at sheriff's sale. The libel in this proceeding was filed March 1, 1880, and notice thereof was given at the sheriff's sale. Upon these facts it is impossible to contend that there has been any unreasonable delay in enforcing this demand, and the defence based on thtl ground of laches must fail. Lastly, it is contended that the libellant's lien was cut off by the sheriff's sale of the vessel. That sale was had in a proceeding taken in accordance with the laws of the state of New York (LltWB 1862, c. 482) to enforce a lien for repairs and material furnished, created by those laws, and whatever may be finally settled in respect to the validity of such a sale for any purpose, I am unable to see how it can ever be held that the legal effect of such a sale is to destroy a maritime lien upon the vessel existing at the time of the commencement of the proceedings under the state law, and which by the laws and constitution of the United States the parties have the right to eriforce by an admiralty proceeding in rem. The Lottawanna, 21 Wall. 580. My opinion, therefore, is that the libellant's lien was not affected by the sheriff's sale in the proceeding taken in the state court, and remains a valid and subsisting lien upon this vessel, capable of being enforced by this proceeding. Let a decree be entered condemning the vessel to pay the libellant's demand, with costs.
NEW HAVEN STEAM SAW-MILL CO.
HAVEN STEAM SAw.MILL CO.;p. SECURITY INS. CO.(Oircuit Oourt, D. Oonnecticut.
January 6, 1881 )
MARINE INSURANCE-POLICY CONSTRUED.
In a printed policy of insurance the assured warranted" not to use ports and places in Texas, except Galveston; nor foreign ports and places in the Gulf of Mexico." On the margin was written the following: "To be employed in the coasting trade on the United States Atlantic coast;" and underneath, also in writing, the words" Permitted .. .. .. to use gulf ports not west of New Orleans." The vessel was lost in the Gulf of Mexico, west of New Orleans, while on a voyage from Maine to Morgan City, Louisi:ma, a place west of New Orleans. Held, that when the loss occurred the vessel was on a voyage not permitted by the policy. Libel dismissed.
In Admiralty. H. Stoddard, L. H. Bristol, and O. R. Inge1'soll, for libellant. J. W. Alling, for respondent. BLATOHFORD, C. J. This is a libel in admiralty, filed in the dist.rict court, to recover $3,000, the sum insured by a valued marine policy of insurance issued by the respondent to the libellant, insuring the schooner Tannhauser for one year from January 28, 1880. The policy is a printed form, filled up with writing, and containing additional written clauses. It contains the following clauses wholly in print:
.. Warranted by the assured not to use ports on the continent of Europe north of nor the Mediterranean east of the Ionian islands, during the period insured; nor ports on the continent of Europe north of A.ntwerp between first of Novembel' and first of March; nor ports in the British North American provinces, except between the fifteenth day of May and fifteenth day of August; also warranted not to use tl1e West India islands dUring the months of August and September; also warranted not to use ports and places in Texas, except Galveston; nor foreign ports and places in the Gulf of Mexico; nor places on or over Ocracoke bar; nor any of the West India salt islands; nor ports or places on the west coast of America, north of Benicia; nor to use the Min river, nor Torres straits, during the period insured." "Also warranted not to load more than her registered tonnage with lead, marble, coal, slate, copper ore, salt, stone, bricks, grain, or iron, either or all, on anyone passage."
On the margin of the face of the policy, written at a right angle to the printed lines, are these words: "To be employed in the coasting trade on the United States Atlantic coast," in one line. Underneath that line, and in one line parallel with it, are these written words:
*See 7 FED.
847, for the opinion delivered by the court below.